April 7th, 2016: Johnstone & Cowling is Successful at the Supreme Court of Canada – Court Confirms That First Nations Policing Labour Relations Are a Provincial Matter

May 23, 2018 1:16 pm Published by Leave your thoughts

The Supreme Court of Canada today dismissed the union’s application for leave to appeal the judgment of the Federal Court of Appeal in Nishnawbe-Aski Police Services Board v Public Service Alliance of Canada. In that case, the Court accepted the argument of lawyers from Johnstone & Cowling LLP that the habitual policing activities carried out by a First Nations Police Service fell within provincial labour relations jurisdiction under the constitution.

This case concerned the Nishnawbe-Aski Police Service, a First Nations Police Service established under a tripartite agreement between the federal government, the Province of Ontario and the Nishnawbe-Aski Nation in 1994.

The Service was funded in roughly equal shares by the federal and provincial governments. Its constables performed the same sort of policing functions that had been performed when the OPP provided policing in the relevant areas, and were empowered to enforce federal and provincial legislation. A relatively small proportion of officers’ time was spent on the enforcement of by-laws passed by local Band Councils.

In 2005, the Canada Industrial Relations Board certified the Public Service Alliance of Canada to represent employees of the Service. In 2011, the Service, which was not at the time represented by Johnstone & Cowling LLP, brought an application to set aside PSAC’s certification. In November 2013, the CIRB dismissed the Service’s application on the basis that the Service was engaged in governance-related activities for First Nations communities, which fell within the federal Parliament’s constitutional power to regulate “Indians and lands reserved for Indians”.

The Service then retained Johnstone & Cowling LLP and applied to the Federal Court of Appeal to have the CIRB’s decision quashed. David Cowling and Alex Sinclair argued that the CIRB’s interpretation of the constitution was incorrect. The Attorney General of Ontario intervened to support the Service’s position.

A unanimous panel of the Court of Appeal agreed with the Service’s arguments and quashed the CIRB’s decision, holding that the labour relations of the Service, like those of other local police services, fell within provincial jurisdiction. The Court held that the general presumption that labour relations are provincially regulated may be overcome where two conditions are satisfied:

The Court must first consider the “functional test”, considering whether the nature, habitual activities and daily operations of the employer constitute a federal undertaking. This entails a consideration of the services performed by the employer, its source of funding, and whether the regulation of the employer’s activities emanated from the federal or provincial level.
If the functional test is inconclusive, the Court should proceed to consider whether provincial regulation of the employer’s labour relations would impair the “core” of a category of federal jurisdiction under the constitution.
A connection with First Nations interests was not, on its own, sufficient to bring an entity within the federal jurisdiction for labour relations purposes.
In this case, the function of the Service was to provide policing services in respect of the wider community in the relevant areas, which entailed enforcing the law in relation to both First Nations and non-First Nations individuals. The fact that the Service’s activities were focused on First Nations communities did not mean that the essence of those activities was not policing services, similar in nature to those provided by other provincial and municipal forces, which fell within provincial jurisdiction. Accordingly, the Court directed the CIRB to set aside the certification orders in respect of the union, and granted the Service the costs of its application to the Court.

By rejecting the union’s application for leave to appeal, the Supreme Court has implicitly endorsed the Court of Appeal’s sensible application of the relevant constitutional principles. The mere fact that an employer has a connection to a First Nations reserve, or indeed to some other area of federal jurisdiction, is insufficient, in and of itself, to bring that employer’s labour relations within the ambit of the Canada Labour Code.

Read full decision.

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This post was written by geekpower

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